Citation Nr: 0738857
Decision Date: 12/11/07 Archive Date: 12/19/07
DOCKET NO. 05-29 900 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Newark, New
Jersey
THE ISSUE
Entitlement to a compensable rating for cholangitis with
jaundice.
REPRESENTATION
Appellant represented by: National Association of County
Veterans Service Officers
ATTORNEY FOR THE BOARD
Heather M. Gogola, Associate Counsel
INTRODUCTION
The veteran served on active duty from March 1944 to March
1946.
This matter is before the Board of Veterans' Appeals (Board)
on appeal from a November 2004 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Newark, New Jersey.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
The Board notes that the veteran initially requested a
hearing before a Veterans Law Judge. The veteran, however,
failed to appear for his scheduled hearing, and was notified
by an August 2006 letter that his request to reschedule his
hearing was denied due to the appellant's failure to show
good cause and impossibility of timely requesting
postponement.
REMAND
Service connection for cholangitis with jaundice was granted
in a March 1947 rating decision, and the disorder was
assigned a 10 percent rating. In September 1956, the RO
informed the veteran that he would no longer receive benefits
as he failed to appear for a VA examination. The veteran
submitted his claim for a compensable rating for cholangitis
with jaundice in August 2004 and a rating decision dated
November 2004 continued his noncompensable rating.
In conjunction with his claim, the veteran was afforded a VA
examination in September 2004. The examiner noted that the
veteran was hospitalized for cholangitis approximately two
years ago. He also noted that the veteran complained of
abdominal pain in the lower abdomen, as well as right upper
quadrant pain that was exacerbated by alcohol use.
Examination noted mild tenderness in upper right quadrant and
an ultrasound provided by the veteran showed a right lower
lobe mass. The examiner provided a diagnosis of cholangitis
in October 2002.
Unfortunately the September 2004 VA examination is
insufficient for rating purposes as it did not address the
criteria set forth in 38 C.F.R. § 4.114, Diagnostic Code
7316. The VA examination did not discuss whether the veteran
experienced gall bladder dyspepsia, confirmed by x-ray
technique, nor did the examiner discuss whether the veteran
experienced infrequent attacks of gall bladder colic, with or
without jaundice. Therefore, the veteran should undergo an
additional VA examination in order to better assess the
severity, symptomatology, and manifestations of his
cholangitis with jaundice. 38 U.S.C.A. § 5103A(d)(1); 38
C.F.R. § 3.159(c)(4).
Accordingly, the case is REMANDED for the following action:
1. The veteran should be asked to provide
the names and addresses of any VA or
other physicians from which he received
treatment for cholangitis with jaundice.
After obtaining the necessary
authorizations, the RO should attempt to
obtain copies of the veteran's treatment
records. If the RO is unsuccessful in
its efforts to obtain any such evidence,
it should so inform the veteran of its
inability to obtain the evidence and
request the veteran to submit such
evidence.
2. After all records are associated with
the claims file, the veteran should be
scheduled for a VA examination to
ascertain the severity and manifestations
of his cholangitis with jaundice, in
accordance with the applicable rating
criteria. The claims files must be made
available to and reviewed by the examiner
prior to the examination. The examiner
is to conduct all necessary testing and
evaluation needed to evaluate the nature
and extent of this disorder, including x-
ray studies if clinically appropriate.
The examiner should review the results of
any testing prior to completion of the
report and should detail the veteran's
complaints and clinical findings,
clinically correlating his complaints and
findings to the disorder. In the report
the examiner must address whether the
veteran experiences gall bladder
dyspepsia that is confirmed by x-ray
technique, and whether he has infrequent
attacks (not over two or three a year) of
gall bladder colic, with or without
jaundice. A complete rationale must be
provided for any opinion offered.
3. The veteran is hereby notified that
it is his responsibility to report for
all VA examinations, to cooperate in the
development of the claim, and that the
consequences for failure to report for a
VA examination without good cause may
include denial of the claim. 38 C.F.R.
§§ 3.158, 3.655 (2007). In the event
that the veteran does not report for any
ordered examination, documentation should
be obtained which shows that notice
scheduling the examination was sent to
the last known address prior to the date
of the examination. It should also be
indicated whether any notice that was
sent was returned as undeliverable.
4. After the development requested has
been completed, the RO should review the
examination report to ensure that they it
is in complete compliance with the
directives of this REMAND. If any report
is deficient in any manner, the RO must
implement corrective procedures at once.
5. After the foregoing, the RO should
review the veteran's claim. If the
determination is adverse to the veteran,
he and his representative should be
provided an appropriate supplemental
statement of the case and given an
opportunity to respond.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
_________________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2007).